As any reader of this blog (or casual reader of immigration news) knows, the Trump administration has declared war against the State of California due to the State’s passage of various laws designed to protect undocumented immigrants as well as employers from unwanted federal intrusion into workplaces. Earlier this year, Thomas D. Homan, acting director of Immigration and Customs Enforcement (ICE), has criticized California for their efforts to protect undocumented immigrants and limit law enforcement’s ability to cooperate with immigration officials. Homan recently added “We’ve got to take these sanctuary cities on. We’ve got to take them to court, and we’ve got to start charging some of these politicians with crimes.”

Upon this backdrop, in early March 2018, the Department of Justice (DOJ) sued California alleging three new state laws designed to protect certain undocumented immigrants from deportation by the federal government are unconstitutional. This article will focus on the employment-related statute - Immigrant Worker Protection Act. The DOJ is seeking preliminary and permanent injunctions that prohibit California from enforcing Immigrant Worker Protection Act against private employers.

Under the Immigrant Worker Protection Act (AB 450), which became effective January 1, 2018, California has placed restrictions on how private employers in California must respond to ICE efforts to ensure immigration compliance, by requiring ICE agents to provide a judicial warrant to employers to access non-public portions of worksites. Thus, employers may not simply consent for ICE to have access to non-public portions of the worksite. Additionally, employers are prohibited from sharing confidential employee information, such as Social Security numbers, unless required to do so in a Notice of Inspection or provided a judicial warrant. The law also requires employers to provide employees and their authorized representatives, within 72 hours, with copies of written ICE notices providing results of inspections.

According to the DOJ lawsuit, “These provisions, individually and collectively, have the purpose and effect of interfering with the enforcement of the INA and IRCA’s prohibition on working without authorization. California has no lawful interest in protecting unauthorized workers from detection or in shielding employers who have violated federal immigration law from penalty. These provisions, as applied to private employers, violate the Supremacy Clause by, among other things, constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement.”

California officials, including California Attorney General Xavier Becerra, assert they have the constitutional right to govern their state as they see fit because “States and local jurisdictions have the right to determine which policies are best for their communities.”

“There is real uncertainty about who will win it,” said Ilya Somin, law professor at George Mason University. That's in part because the legal landscape on federal vs. state rights related to immigration is not clear. Lower courts have split on whether it is legal for the federal government to require local law enforcement to hand over immigrants. The lawsuit is a risky endeavor for the Trump administration because if it loses, it will potentially empower other states that want to defy the president to pass similar laws.
I will keep you updated on this litigation. For a review of all employment and immigration-related state laws and other issues related to employer immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.

Office of Chief Administrative Hearing Officer (OCAHO) was incredibly quiet in calendar year 2017 issuing only 5 substantive decisions against employers in I-9 penalty cases. Why so few decisions? Did employers stop committing any I-9 violations? Did employers stop appealing decisions by Immigration and Customs Enforcement (ICE)? The answer to both questions is no.

The answer is that there has been such turnover of Administrative Law Judges (ALJs) at OCAHO that very few cases have been heard by OCAHO. In 2016, ALJ Ellen K. Thomas retired and ALJ Stacy Paddack transferred to another agency after less than two years at OCAHO. In late 2016, James McHenry was named an OCAHO ALJ. However, his tenure was short-lived as less than six months later, he was named Acting Director of EOIR and in January 2018, he became the permanent Director of EOIR. So, after ALJ McHenry issued four OCAHO I-9-related decisions in first five months of 2017, only one such decision issued the rest of 2017. In the last nine months, ALJs have been “detailed from other agencies.

The rest of my 2017 yearly review will be published by LawLogix in the coming weeks. So, look for it there.

The Immigrant and Employee Rights Section (IER) of the Justice Department has entered into a settlement agreement with West Liberty Foods L.L.C., a meat processing business that operates a plant in Bolingbrook, Illinois, wherein the company will pay $52,100. The settlement resolves the IER’s investigation into whether the company discriminated against work-authorized immigrants when verifying their employment authorization.

The investigation revealed that West Liberty Foods routinely asked non-U.S. citizens hired at its Bolingbrook location to present specific documents, such as permanent resident cards or employment authorization documents, to establish their work authorization but did not make similar requests of U.S. citizens. The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from subjecting employees to more or different documentary demands based on employees’ citizenship, immigration status, or national origin.

Under the settlement, West Liberty Foods will pay a civil penalty of $52,100 to the United States; revise employment policies to assure that West Liberty Foods does not discriminate on the basis of citizenship status; ensure that its human resources staff participates in IER-provided training on the anti-discrimination provision of the INA; post notices informing workers about their rights under the INA’s anti-discrimination provision; and be subject to IER monitoring for two years.

This settlement demonstrates the need for employers to be aware of the anti-discrimination provision of the INA as it relates to treating employees differently due to their citizenship status. To learn more about employer immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, which is available at http://www.amazon.com/dp/0997083379.

In a case where immigration law and labor law overlapped, the National Labor Relations Board’s Division of Advice issued an Advice Memorandum finding on one occasion that Washington University unlawfully threatened its graduate assistants who were involved in a union organizing campaign.

The dispute began when SEIU, Local 1 (Union) began an organizing campaign among graduate students (graduate assistants) at Washington University, many of which were foreign students. During the campaign, the University sent an email to all graduate assistants. One of the University’s statements was:

Foreign students...I have been told that if a graduate student union is formed,
and this union goes on strike...all foreign students will lose their visas and have
to leave the country. In my opinion, this would be terrible for our students and
our program.

The next day, a union organizer stated unionization would not have any effect on the graduate assistant’s visa status and there was no possibility of them being deported.

Due to the contradicting information, the graduate assistants requested another meeting with the University. At this meeting, the University stated that they did not know what would happen, but information provided by the Department of Homeland Security indicated that if the Union were to strike, student-visa holders “could lose their status and be asked to leave the country.”

Later in the campaign, the University emailed a FAQ document addressing the foreign student visa issue. The University stated:

Question: Could a strike potentially have an impact on my F-1 visa status?
To obtain an answer, the University contacted an outside immigration attorney
and ICE. The information provided to the University is set out below.

Answer: If graduate students are required as part of their academic program
to “work” as graduate assistants teaching classes or conducting research,
then continuing to serve in that capacity is required in order for the student to
maintain a “full course of study” and thus to maintain their F-1 status.

As 8 CFR §214.2(f)(14) states: Any employment authorization, whether or
not part of an academic program, is automatically suspended upon certification
by the Secretary of Labor … or the Commissioner of the Immigration and
Naturalization Service …, that a strike or other labor dispute involving a work
stoppage of workers is in progress in the occupation at the place of employment.

Under such circumstances, F-1 visa students could be subject to deportation
whether they continued to “work” or not. If students honored the strike and
caused the suspension of their work status under 8 CFR §214.2(f)(14), they
could be deemed out of status for having failed to maintain a “full course of
study.”

Based upon this evidence, the Division of Advice concluded “the Employer violated Section 8(a)(1) of the Act by threatening that, in the event of a strike, “all foreign students will lose their visas and have to leave the country.” Furthermore, the Advice memo stated: “While a strike could potentially lead to such consequences for at least some graduate student employees, the Employer’s statement overstated the requirements of the applicable regulations and the potential effects of those regulations on the affected graduate student employees. In many strike situations, graduate student employees in fact would not lose their visas, given the time that it takes the Secretary of Labor to certify the strike after being notified by the relevant school officials. Moreover, even where the Secretary of Labor does certify a graduate student employee strike, and foreign graduate student employees do lose their student visas, individual graduate student employees may well have some basis other than their student status for lawfully remaining in the United States, despite the Employer’s blanket statement that they all would ‘have to leave the country.’”

However, the Employer’s other statements were lawful, as they either set forth the exact language of the applicable Federal regulations or accurately conveyed the possibility that a strike “could” lead to the loss of student visas.

For answers to many other questions related to immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.

The California Labor Commissioner’s Office has released the template for the notice requirement of the state’s new law on I-9 inspections. As many of my readers know, California passed a law in late 2017, Immigrant Worker Protection Act, which requires that employers notify their employee workforce of any government I-9 form inspections within 72 hours or face potential penalties and fines. Prior to the release of this template, California employers who received a Notice of Inspection (NOI) had to create their own notice.

Section 90.2(a)(1) of the California Labor Code requires employers to provide notice to current employees of any inspection of I-9 forms or other employment records conducted by an immigration agency, such as Immigration and Customs Enforcement (ICE) or Homeland Security Investigations (HSI), which is a part of ICE.

The California law mirrors the NOI timing by requiring employers to provide a posted notice to employees within 72 hours of receiving the NOI. However, under federal law, an employer may request an extension of time on producing the I-9 forms and sometimes ICE will provide more than three days without an employer’s request. The California law does not provide any such extension of time. Therefore, California employers are still required to notify employees of the audit within that 72-hour time window.
The posting of the notice should be where other government postings are located. The notice must be written in the language one usually uses to communicate with employees. California provided both English and Spanish versions of their sample template. Below is a copy of the template in English.

For a review of all employment and immigration-related state laws and other issues related to employer immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.